Judge, defense attorney may have had improper conversations in Walmart mass shooting case, DA says

Prosecutors in the Walmart mass shooting case are asking that a hearing scheduled for later this month be postponed so they can investigate potentially improper communications between the judge and defense attorneys.

This is so-called ex parte communication, i.e. communication between a judge and a party in a case without informing the other party. In court filings Friday, the El Paso County District Attorney’s Office said recent motions from defense attorneys for murder suspect Patrick Crusius alerted them that 409th District Judge Sam Medrano had ruled on at least three motions from defense attorneys who told prosecutors had not been communicated.

The public prosecutor’s office filed two motions on Friday. They want Medrano to release all sealed ex parte motions, which narrow exceptions in the law disallow. The second motion asks that the hearing scheduled for Oct. 31 and Nov. 1 be postponed for at least 30 days so that prosecutors can review those requests, determine their potential impact on the case and consider possible sanctions or remedies.

Medrano scheduled the hearing to consider motions from defense attorneys and prosecutors as he prepares the case for a possible trial in 2026.

Joe Spencer, one of Crusius’ defense attorneys, declined to comment on the motion when contacted by El Paso Matters, saying the defense would respond in court. District Attorney Bill Hicks also declined to comment. Medrano is prohibited from commenting on matters before his court outside of official business.

The motions focus on allegations made in a Sept. 9 defense motion accusing prosecutors of inappropriate conduct: violating an April 18, 2023 order by allowing psychiatric and medical professionals improper contact with Crusius; and failing to disclose Crusius’ jail surveillance video, in violation of two 2021 court orders.

Prosecutors said they were never informed of the three orders they are accused of violating because the orders came in a one-way communication between Medrano and defense attorneys. The two defense motions argue that these orders fall well outside the narrowly defined uses of ex parte communications in Texas law.

“While the Code of Criminal Procedure recognizes and expressly authorizes ex parte communications in some cases, there is no statutory provision that expressly authorizes ex parte proceedings in connection with a criminal defendant’s discovery request,” prosecutors said in one of the filings Friday .

After learning of three ex parte motions in the defense motion last month, prosecutors said they needed to know whether there were any more such motions in the court records. Since 2020, several hundred applications have been submitted under seal – meaning they are not publicly known.

Prosecutors said: “It is simply not fair to require the state to attempt to respond to Crusius’ motions and conduct a hearing without knowing what is in the hundreds of sealed orders that may be invalid.” three of which are certainly invalid.” This Court should schedule a hearing and, after the hearing, unseal all invalid motions and orders not sealed by Ake ex parte and all contents sealed pursuant to such motions and orders, grant the State access thereto and the State provide at least an additional period of time 30 days thereafter to respond to Crusius’ motions before beginning hearings on such motions.”

Attorneys working in the case have filed several motions in recent weeks after Medrano announced he would issue an order setting a timetable for trial of the five-year-old case.

Crusuis, now 26, is charged with 23 counts of capital murder and 22 counts of aggravated assault with a deadly weapon in the mass shooting at a Walmart in El Paso on August 3, 2019. Prosecutors are seeking the death penalty.

The trial on state charges was delayed while a separate federal case moved forward charging Crusius with hate crimes and weapons charges. He pleaded guilty to that charge in 2023 after federal prosecutors said they would not seek the death penalty. He was sentenced to 90 consecutive life sentences in federal prison without the possibility of parole.

Crusius admitted in the federal case that he posted a message online before the shooting that said he was trying to “stop the Hispanic invasion of Texas.” Both the prosecution and defense said at Crusius’ federal sentencing that he had suffered from serious mental illness in the past.

Defense attorneys have raised allegations of criminal misconduct by the district attorney’s office dating back to 2020 and said Medrano should consider dismissing the case or eliminating the death penalty as an option. Prosecutors’ allegations of improper contact between defense attorneys and the judge, if proven true, could lead to efforts to remove Medrano or the current defense team from the case.